Legal Rights For Fertilized Eggs? How A Terrifying Law Could Lead To Jail-time For Miscarriages, Birth Control Bans, And The End Of Legal Abortion

Mississippi could well be the first state to pass a "personhood law," once considered too extreme for mainstream anti-choicers.

Dr. Freda Bush has a warm, motherly smile. In her office just outside Jackson, Miss., she smiles as she hands me a brochure that calls abortion the genocide of African-Americans, and again, sweetly, as she explains why an abortion ban should not include exceptions for rape or incest victims. The smile turns into a chuckle as she recounts what the daughter of one rape victim told her: “My momma says I’m a blessing. Now, she still don’t care for the guy who raped her! But she’s glad she let me live.”

Bush is smiling, too, in the video she made to support as restrictive an abortion ban as any state has voted on, Initiative 26, or the Personhood Amendment, which faces Mississippi voters on Nov. 8. “It doesn’t matter whether you’re rich or poor, black or white, or even if your father was a rapist!” she trills. But Initiative 26, which would change the definition of “person” in the Mississippi state Constitution to “include every human being from the moment of fertilization, cloning or the equivalent thereof,” is more than just an absolute ban on abortion and a barely veiled shot at Roe v. Wade — although it is both. By its own logic, the initiative would almost certainly ban common forms of birth control like the IUD and the morning-after pill, call into question the legality of the common birth-control pill, and even open the door to investigating women who have suffered miscarriages.

Personhood amendments were once considered too radical for the mainstream pro-life movement, but in the most conservative state in the country, with an energized, church-mobilized grass roots, Mississippi could well be the first state to pass one. Initiative 26 even has the state’s top Democrats behind it.

And in Bush, it even has a respectable medical face. Last month, Bush led a press conference of fellow gynecologists to try to refute the “scare tactics” of the opposition, which includes even the solidly conservative Mississippi State Medical Association. (The group feared 26 would “place in jeopardy a physician who tries to save a woman’s life.”) In one of several “Yes on 26″ videos in which she stars, Bush says unequivocally, “Amendment 26 willnot ban contraception.”

But when we spoke, Bush was far less sure. And if her smiling face carries the day, the debate over even basic access to birth control could be heading to similar votes in every state legislature, and extremists have their dream case to take to a Supreme Court where the Roe majority teeters precariously.

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That’s partly because the Personhood movement hopes to do nothing less than reclassify everyday, routine birth control as abortion. The medical definition of pregnancy is when a fertilized egg successfully implants in the uterine wall. If this initiative passes, and fertilized eggs on their own have full legal rights, anything that could potentially block that implantation – something a woman’s body does naturally all the time – could be considered murder. Scientists say hormonal birth-control pills and the morning-after pill work primarily by preventing fertilization in the first place, but the outside possibility, never documented, that an egg could be fertilized anyway and blocked is enough for some pro-lifers.

Indeed, at least one pro-Personhood doctor in Mississippi, Beverly McMillan, refused to prescribe the pill before retiring last year, writing, “I painfully agree that birth control pills do in fact cause abortions.” Bush does prescribe the pill, but says, “There’s good science on both sides … I think there’s more science to support conception not occurring.” Given that the Personhood Amendment is so vague, I asked her, what would stop the alleged “good science” on one side from prevailing and banning even the pill?

Bush paused. “I could say that is not the intent,” she said. “I don’t have an answer for that particular [case], how it would be settled, but I do know this is simple.” Which part is simple? “The amendment is simple,” she said. “You can play the ‘what if’ game, but if you keep it simple, this is a person who deserves life.” What about the IUD, which she refuses to prescribe for moral reasons, and which McMillan told me the Personhood Amendment would ban? “I’m not the authority on what would and would not be banned.” No – Bush simply plays one on TV. And if her amendment passes, only condoms, diaphragms and natural family planning — the rhythm method – would be guaranteed in Mississippi.

Bush also says in the commercial that the amendment wouldn’t “criminalize mothers and investigate them when they have miscarriages.” And yet if the willful destruction of an embryo is a murder, then that makes a miscarried woman’s body a potential crime scene or child welfare investigation. What about women whose miscarriages were suspected to be deliberate or due to their own negligence? One Personhood opponent, Michele Johansen, told me she wondered whether she could have been investigated for miscarrying a wanted, five-week pregnancy, because she rode a roller coaster. (Her doctor ultimately told her they were unrelated.)

The boilerplate Personhood response, echoed by both McMillan and Bush, is that no woman was prosecuted for miscarriage before Roe v. Wade, so why start now? Of course, there was no Personhood amendment at the time, nor much knowledge of embryonic development. And in countries with absolute abortion bans, like El Salvador, women are regularly investigated and jailedwhen found to have induced miscarriages.

Pressed, Bush said, “Look at the numbers of women who were injuring themselves [pre-Roe] in an attempt to have an abortion. It was not 53 million,” the estimated number of abortions since Roe v. Wade.

“I don’t have all the answers,” she said, “but those questions that are there do not justify allowing nine out of 10 of the abortions that are being done that are not for the hard cases,” she said.

But a Colorado-based Personhood activist, Ed Hanks, is more than willing to publicly take things to their logical conclusion. He wrote on the Personhood Mississippi Facebook page that after abortion is banned, “the penalties have to be the same [for a women as well as doctors], as they would have to intentionally commit a known felony in order to kill their child. Society isn’t comfortable with this yet because abortion has been ‘normalized’ — as the Personhood message penetrates, then society will understand why women need to be punished just as surely as they understand why there can be no exceptions for rape/incest.”

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Personhood represents an unapologetic and arguably more ideologically consistent form of the anti-choice movement. It aims squarely for Roe v. Wade by seizing on language from former Supreme Court Justice Harry Blackmun – the author of the Roe decision — during the hearings that the case would “collapse” if “this suggestion of personhood is established … for the fetus.”

Similar ballot measures have failed twice in Colorado, where an evangelical pastor and a Catholic lawyer started the Personhood movement, but Mississippi is no Colorado. It’s the most conservative state in the nation. Planned Parenthood (which doesn’t even provide abortions in its one clinic here) and the ACLU are dirty words. Where there were once seven abortion clinics in the state, the one remaining flies in a doctor from out of state. As for supporting life, Mississippi’s infant mortality rate is the worst of any state in the nation. The number of babies who die as infants in Mississippi is double the number of abortions annually. It also has one of the highest rates of teen pregnancy nationwide, alongside a child welfare system that remains dangerously broken.)

Even so, if Initiative 26 passes, it would embolden similar efforts in Ohio, South Dakota, Florida and other states, currently trying to get a Personhood amendment on the ballot in 2012. And though there have been no reliable public polls, insiders on both sides believe it is headed for approval. “This thing will pass if people don’t understand what it really means,” says Oxford-based attorney and Initiative 26 opponent Forrest Jenkins. The Personhood movement “can either convince people that birth control is abortion or they can convince people that it’s not really true and we’re just being silly.” (Indeed, when I asked one college student who described himself as pro-life about the birth-control implications, he said, “I thought that was just gossip.”) Unfortunately for opponents, talking about sweeping and nuanced implications takes a lot more words than “stop killing babies.”

Mindful of anti-abortion sentiment in the state, even the local pro-choice opposition has taken to referring to all these implications – like banning birth-control pills — as “unintended consequences” of the initiative. But as my conversations in Mississippi with pro-Initiative 26 doctors made clear, for many Personhood supporters, these effects are anything but unintended. They’re part of the plan.

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I had barely arrived in Mississippi when I was declared a “wolf in sheep’s clothing” by the grass-roots wing of the movement. Les Riley, the self-described “tractor salesman with 10 kids and no money” who got Personhood on the ballot, stopped responding to my messages, so I’d posted interview requests on the Personhood Mississippi Facebook page, disclosing that I was pro-choice but committed to giving them a fair hearing.

“This is just a reminder of some of the ‘Neutral and Fair’ mainstream media that are trying to lure us into debate, argument, and confrontation,” Wiley S. Pinkerton wrote on the same page, not long after. “They are coming to this site hoping to catch us without the full armor of God.”

Of course, even if I’d wanted to, the chances of catching any of them without “the armor of God” seemed remote. The Personhood movement in Mississippi is openly theocratic. Riley has written that “for years, the pro-life movement and the religious right has allowed the charge [of being “religiously motivated”] to make them run for cover. I think we should embrace it.” Riley, in fact, had already enthusiastically embraced Christian secessionist and neo-Confederate groups as part of his coalition. (Thenational media play his personal history received by the time of my visit this month might explain some of the hostility to the press.)

Last summer, a more mainstream face, Brad Prewitt – a lobbyist and former high-level staffer for U.S. Sen. Thad Cochran – took over the campaign at the request of the American Family Association, which, like Prewitt, is based in Tupelo. (Riley continues to actively campaign, though he isn’t listed on the official Yes on 26 site. Prewitt promised an interview several times, but never came through.) Prewitt, too, publicly described the conceptual origin of Personhood being “the Bible, Genesis,” and declared, “Mississippi is still a God-fearing state.”

At several public forums organized by the secretary of state to discuss ballot initiatives, resident Scott Murray’s statement was typical: “I know there is an issue with pregnancies, unmarried pregnancies, but I tell you the greatest prevention is God, and we’ve got to return to God.” So was Stephen Hannabass’ assertion that “we’ve got to repent. We’ve got to come before God and beg for mercy for our state and for our country.”

There are women in the Personhood movement too, of course. In Tupelo, two of them thanked the men who were “created to be protectors” and who “are to speak out for the women and children.” Another, who said she wished the law had protected her from her own choice to have an abortion at 18, took a more practical tack: “Yes, it’s going to cost us money, but you know what? Have we thought about the cost it’s already costing the state from the ladies who are hurting themselves and the babies and the hurts?”

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But is there mercy for women facing life-threatening pregnancies – specifically ectopic pregnancies, which are never viable and can seriously threaten a woman’s life? In countries with absolute abortion bans and in many Catholic hospitals, doctors often have to wait to operate until fetal death or until there is a rupture, increasing the risks to the mother and baby.

As for cases where a woman has to choose between pursuing treatment for a life-threatening illness and her pregnancy, McMillan said, “I like to think about them as a graph. You have health going up and down, you have time nine months going this way. Here’s the mother’s health going down, down, down over those nine months of pregnancy. Here’s the baby’s chance of survival going up, up, up over that nine months. What I pray to recognize is that when those two lines intersect. That’s not the time for an abortion but for a planned early delivery.” I pointed out that, say, cancer tended to involve far less predictability than she described. “It’s a medical wisdom thing. You try your best,” the doctor replied.

The Yes on 26 site speaks of “saving both lives” as if it’s an unequivocal setup in which doctors can just pick both. “You can’t write a law that takes into account all of the amazing range within pregnancies,” responds Randall Hines, a Jackson doctor who opposes the initiative. “That’s why physicians have to counsel patients given the best evidence that they have.”

Prewitt has also frequently proclaimed that in-vitro fertilization, which gave him his two sons, won’t be banned under the measure. But Hines, one of only three doctors who do IVF in the state, told me, “It’s conceivable that with this same amendment, some IVF practices would be illegal,” adding, “I’ve heard a variety of opinions and they all sound bad.”

This, too, is seen as simple by the Personhood crowd, whose understanding of the actual science is, well, simplistic. Alex Strahan, who described himself as Personhood’s Southern field director (he’s not currently listed on the site), said at the Tupelo hearing, “If you harvest 10 eggs and you implant three and you throw away the other seven, you’re aborting seven children. You’re aborting seven humans. You’re killing seven humans. So do it the right way and don’t kill children.”

The best chance of an in-vitro pregnancy involves a winnowing process, starting with harvesting eggs and ideally ending in a fertilized egg implanting, and embryos are usually frozen in the process. Using all of the fertilized eggs at once could result in a dangerous multiple pregnancy, or if fewer are used, a very low chance of success. Some Personhood people even want to do away with freezing embryos, because roughly half of the embryos don’t survive it. Hines says of these strategies, “We would lower the overall pregnancy rate and we would often fail.” He says several patients have called frantically asking what to do about their frozen embryos. “These people who say that they’re all about the sanctity of life are creating great anxiety for women who are already desperate to have children,” Hines says. Personhood advocates, including Prewitt, have also suggested couples give leftover embryos, if there are any, up for “adoption” by another family.

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So how did something so radical get on the ballot in a state where such initiatives are rare? Prewitt has admitted that he didn’t even sign the initial petition to get Personhood on the ballot, which was filed in February. That’s not particularly surprising; until Riley got close to, then exceeded, the 90,000 needed signatures, his cause was considered marginal and dangerous by many mainstream pro-lifers.

Personhood hadn’t just failed in Colorado; it had also helped elect a pro-choice Democrat to the Senate, according to that state’s Republican Party chair. (Michael Bennet had run ads saying opponent and Personhood supporter Ken Buck wanted to ban birth control, and by the time Buck backed off it was too late; Bennet won by dint of independent women.) Florida’s Catholic bishops opposed it as strategically unsound. (Mississippi’s Catholic brass followed.) And it was just plain weird – there was its Coloradan leader (who also declined comment), darkly warning of a future of human-animal and human-robot hybrids unless Personhood amendments were broadly accepted.

It was the American Family Association endorsement that put media muscle behind the movement in Mississippi, with email blasts, radio PSAs and interviews, promotions on its own website, and combined with the grass-roots energy, the state’s anti-choice groups took notice. Suddenly, people who had previously focused on incremental change – parental consent laws, waiting periods, ultrasound laws – were ecstatically heralding an end of the “murders.” Mike Huckabee keynoted a fundraiser and even presumed GOP front-runner Mitt Romney to endorse the concept on his show. (It’s unclear if Romney knew what he was getting into.)

The state’s tiny pro-choice contingent was stunned by Personhood’s success. It didn’t help that a legal challenge mounted, and eventually lost, by the ACLU and Planned Parenthood delayed the official opposition. The Personhood coalition had been busy organizing – getting churches on board, showing up at every gun show, county fair and flea market telling people it would save babies — for months. But the opposition coalition, known as Mississippi for Healthy Families, waited until a state Supreme Court decision a month ago kept the initiative on the ballot. Before that, says Stan Flint, the managing partner of Southern Strategies who’s advising them, “People wouldn’t pull out a checkbook.”

They could expect no help from local Democrats. The party’s current candidate for governor, Johnny Dupree, who would be the first black statewide official since Reconstruction, supports Personhood. (Republican candidate Phil Bryant embraced Personhood early on, and co-chairs Yes on 26.) Only one of Mississippi’s legislators, Deborah Dawkins, has come out against the measure, telling the Huffington Post that her fellow Democrats “are at a different place in their life, they’ve got to have a job.”

Just how much Personhood has succeeded in moving the goalposts was clear at a recent gubernatorial debate. Dupree said he had concerns about rape and incest victims and the impact on birth control. “But I’m answering the question and voting on the question based on what was asked in the initiative,” he said. “That initiative says, ‘Where do you believe life begins?’ I believe life begins at conception.”

Cristen Hemmins, an anti-26 activist and survivor of a brutal carjacking, rape and shooting, told me she’d gotten a call from Dupree after repeatedly contacting his office. Dupree reiterated that he opposes abortion but thought there should be some provisions for rape and incest victims. Moreover, he said, his daughter had had an ectopic pregnancy and eventually had a child through IVF, both situations potentially impacted by Personhood.

“I said, ‘I don’t understand, if you’re for all these things … why are you voting yes?’” Hemmins recalled. “[Dupree] said, ‘I’m starting to see that there are issues …I’ve said I’m going to vote yes and it’s too late to go back on it now. It’d destroy me politically.’”

I tried to confirm those quotes with Dupree; he did not return calls to his cellphone.

But Democratic candidates aren’t the only ones who are scared. As one anti-Personhood woman angrily put it in a community forum in Cleveland, Miss., I attended last week, “They are counting on us being so afraid of being ostracized in our communities.”

Personhood advocates say all these ambiguities can be hashed out later by the Legislature – quite the small government line, leaving some room for the opposition to use conservative rhetoric.

“We feel it’s the greatest invasion of government into private family matters in the nation’s history,” says Flint. “We’re in a half a billion dollar budget hole. We don’t need ludicrous lawsuits about dangerously extreme constitutional amendments.” Anti-26 phone bankers have cited the possibility of higher taxes to pay for all of those lawsuits, criminal enforcements and presumed new additions to the Medicaid rolls.

Internal polling showed the initiative had overwhelming support among the state’s voters – until they heard the opposition messaging. “It’s the largest movement on numbers I’ve seen, in terms of the undecideds. It reverses the position,” says Flint. A straightforward abortion ban, he said, would have been tougher to beat. “They’ve given us all the ammunition we need to defeat it.”

Personhood could represent the most audaciously successful reframing of the national abortion debate yet – in which pro-choicers have to fight over whether forms of birth control are abortion, as opposed to ensuring a woman’s right and access to reproductive choice. But even in Mississippi, allowing the fringe to drive the antiabortion movement could represent the point where it overplays its hand.

If it’s the latter, the best hope for defeating Personhood in Mississippi lies in the hands of people like the stammering middle-aged man I saw rise at the same community forum. The room was full of indignant pro-choicers, but he described himself as a minister opposed to abortion. “I’m disturbed by this initiative,” he volunteered. “In the name of something that pro-life people like myself think is good – stopping abortions – we’ve designed this thing that is horrible, or has the potential to be horrible.

“I do have a concern about the broadness of this and the way that it says things,” he went on. “And I tell you, it’s almost like it’s not true. It’s like they come in — I don’t like people coming through back doors. And I think I’m more honest than that as a preacher. I hope I am.”